The court has the power to consolidate election petition and recrimination petition proceedings in the absence of an order under rule 6-C of the Code of Civil Procedure, 1908.

D.N.Chaudhary, A.K.Phukan, B.P.Kotoky, N. Dutta, M. Bhuyan, Advocates, for Recrimination Petitioner; B. N. Sen, Dr. M. K. Sharma, S. S. Dey, K. P. Pathak, M. Nath, Smt. N. Saikia, S. A. Laskar and A. B. Chaudhury, for Respondent No.1, Advocates.

Judgement

ORDER:- In election petition No.23 of 1989, the election petitioner has claimed two reliefs, one under Section 100 for declaration that the election of the respondent-2 Sri Basumatary, the returned candidate, is void, and other under Section 101(1) for declaring respondent-1 Hiteswar Saikia to have been duly elected. The respondent-2 filed a recrimination petition No.18 of 1989 under Section 97(1) calling in question the election of the respondent-1 Hiteswar Saikia, is, the respondent-1 Hiteswar Saikia in whose favour a declaration is claimed by the election petitioner cannot be said to have been validly elected.

2. The question for determination is whether the recrimination petition is to be heard together along with, the election petition or separately as an independent petition.

3. Mr. B. N. Sen, the learned counsel for the election petitioner, has submitted that on the facts and circumstances of the case the present recrimination petition is to be tried together along with the election petition. Mr. D. N. Choudhury, learned counsel for the respondent 2, has contended that the recrimination petition shall be tried as an independent petition after the question in regard to the validity of the election of the returned candidate is decided. In order to support his contention he has relied on a decision of the Supreme Court in Jabar Singh v. Genda Lal, AIR 1964 SC 1200.

4. In Jabar Singhs case (supra), the para 13 of the judgment runs: --

" If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under S.100 and the matter proceeds to be tried under S.101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by S.100(1)(d)(iii) and the latter part of the enquiry which is governed by S.101(a) will have to be tried on broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under S.97(1)." (Emphasis added)

In the above quoted passage, the Supreme Court has laid down the procedural step or machinery for carrying on recrimination petition including evidence and practice. It may be noted that in the above passage, the Supreme Court has used the word may and, therefore, the passage indicates that the recrimination petition may be tried after the question relating to the validity of the election of the returned candidate is decided. But the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. In Jabar Singhs case, at para 11, the Supreme Court has also observed that when the returned candidate recriminates, " he really becomes a counter-petitioner" challenging the validity of the election of the person in whose favour declaration is claimed by the election petition; and that the result of Section 97(1) therefore, is that in dealing with a composite election petition,- the Court enquires into not only the case made out by the petitioner, but also the counter-claim made by- the returned candidate. The observation of the Supreme Court shows that there are cases where such proceedings are consolidated, as the counterclaim made in the recrimination cannot be enquired into unless it is heard together with the election petition.

5. Section 87 provides that subject to the provision of the RP Act and of any rules made thereunder, every election petition shall be ,tried by the High Court

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